Six weeks after my birth, the United States Supreme Court issued the landmark opinion of Brady v. Maryland, 373 U.S. 83 (1963), requiring prosecutors to disclose material exculpatory evidence upon the request of the defense: “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady , 373 U.S. at 87. Therefore, Brady is a sword for the criminal defense in seeking exculpatory evidence, and a shield for seeking court relief when Brady is violated.

Absent judicial in-chambers review of prosecutors’ evidence, prosecutors are left to decide what is or is not Brady evidence, in the middle of already long and often exhausting workdays for line prosecutors, often filled with heavy caseloads. Consequently, when prosecutors fail to disclose Brady evidence, reasons for the non-disclosure can run from lack of intent, to multiple demands on time, to differing interpretations of Brady (running from honest to disingenuous interpretations of Brady), to overlooking that certain evidence is Brady evidence, to outright intentional concealment of evidence.

How is a criminal defense team to know whether Brady has been violated beyond learning of previously-undisclosed Brady evidence when it comes to light in the courtroom? Starting points include thorough investigation; digging, digging, and more digging; and being open to those wanting to provide ideas and evidence to the defense team, even when the speakers’ motive is suspect or mental stability is in question.

Until only a year or two ago, in one Virginia county where I would submit proposed District Court discovery orders to the prosecutor’s office, some prosecutors routinely would cross out my insertion of the need to disclose “Brady/exculpatory evidence,” with at least one prosecutor from that office having articulated to me that such evidence is not enunciated in the District Court discovery rule, and that the prosecution does not need to be reminded of its Brady obligations. However, Brady says that “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady , 373 U.S. at 87 (due process). So I request. My request is also an important reminder to prosecutors of their sacred Brady obligations.

With the foregoing backdrop, this week in a habeas corpus action, a federal judge reversed the conviction of death row inmate Justin Michael Wolfe, finding Brady and other violations so serious that the judge would disturb a capital conviction. As the Washington Post reports: “[Norfolk federal trial Judge Raymond A.] Jackson found that Commonwealth’s Attorney Paul B. Ebert and his assistant, Richard A. Conway, supported the use of false testimony from the admitted shooter to link Wolfe to the slaying; failed to disclose evidence that others in the drug ring might have wanted to kill [victim] Petrole; and orchestrated testimony of key witnesses, among other irregularities.”

Such a court opinion and result is earth-shattering. Of course, we shall see whether the Fourth Circuit disturbs the order to re-try Mr. Wolfe, should the prosecution decide to file an appeal.

Responding to Judge Jackson’s retrial opinion, longtime elected chief Prince William County prosecutor Paul Ebert said: Its very upsetting.” It offends me to have anyone say that about me or my office. Assistant prosecutor Richard Conway said: We respectfully but strongly disagree with the findings and conclusions of the court.

Thus-far, my numerous efforts to find Judge Jackson’s fifty-plus-page opinion on PACER and elsewhere online have turned up no written opinion. Although court documents routinely are available by links to PACER, Judge Jackson’s opinion is not so linked at this time. The docket entry (number 208) for the case states:

“MEMORANDUM OPINION, noting that the respondent is substituted pursuant to notice dated January 18, 2011; that the Court FINDS that Wolfe was denied the right to due process pursuant to the Fourteenth Amendment as interpreted in Brady v. Maryland, 373 U.S. 83 (1963), to be apprised of all material, exculpatory information within the hands of the prosecution; Petitioner’s 205 motion for leave to amend the habeas petition is GRANTED, and the Court FINDS that the Commonwealth’s use of Barber’s false testimony is also grounds for habeas relief under both Stockton v. Virginia and Giglio v. United States; that Petitioner’s habeas petition for relief on the ground that he was denied his Sixth Amendment right to an impartial jury is GRANTED; that Wolfe’s petition for a writ of habeas corpus is GRANTED and his conviction and sentence are VACATED; that the case is remanded to the Supreme Court of Virginia for further proceedings not inconsistent with this opinion. Signed by District Judge Raymond A. Jackson on 7/11/2011 and filed 7/12/2011. Copies mailed counsel, Supreme Court of Virginia and Virginia Department of Corrections 7/12/2011 (rlam) (Entered: 07/12/2011).”

On a related note, one reason we need to abolish the death penalty is that defending such cases is so time-consuming as to eliminate many great lawyers from stepping up to the plate to represent capital defendants. Turning to public defender offices for such defense strains generally limited public defender resources all the more, and adds to our already large tax burden. Turning to private-firm lawyers to defend such cases through court pay raises the question of when all jurisdictions will pay sufficiently for such defense. Few capital defendants can afford their own lawyer, considering the general need to put in over one thousand (if not closer to two thousand) hours to go to trial and prepare such cases for trial. Next comes the time-consuming process of appeals and habeas corpus work for those sentenced to death.

Justin Wolfe was most fortunate in this habeas corpus proceeding to have had the defense of the Virginia Capital Representation Resource Center and the corporate law firm of King & Spalding, which doubtlessly did the case either pro bono or at a substantial financial sacrifice if it was being paid through a court appointment, when compared to the large hourly fees that this law firm would command with its corporate clients.